Simplifying Mineral and Coal Mining Business Permits

In terms of licensing and exploitation, the Minerba Law simplifies licensing, one of which is allowing holders of Mining Business Permits (IUP) in one province to have IUPs with the same commodity. However, in the Minerba Law there are no aspects that protect the safety of the people, limit expansion, and the people's right of veto, so the Minerba Law tends to criminalize the people.

The substance of the Minerba Law almost completely changes the initial provisions of Law Number 4 of 2009, especially regarding licensing and abolishing contracts, expanding permits to: IUP, Special Mining Business Permit (IUPK), IUPK for Continuation of Contract Operations, People's Mining Permit (IPR), Rock Mining Permit (SIPB), Assignment Permit, Transportation and Sales Permit, Mining Services Business Permit (IUJP), and IUP for Sales as well as a guarantee of extension of Work Contracts and Coal Mining Work Agreements (made by the government with Indonesian legal entity companies to carry out mineral and coal mining business activities) into IUPK as a Continuation of Contract Operations as referred to in Article 169A of the Minerba Law. The guarantee of extending the production period as stipulated in Article 47 and 83 of the Minerba Law further regulates the extension of mineral and coal mining granted by the government to IUP and IUPK holders.

Control of Mine Production is Only the Authority of the Central Government

Article 4 paragraph (2) of the Minerba Law explains that the ownership and control of minerals and coal by the state as referred to in paragraph (1) is carried out by the Central Government as the holder of mineral and coal mining authority. This certainly ignores the vulnerability and carrying capacity of each region or territory and indicates that mining policy is returning to the direction of centralization or concentration of power. Therefore, mining policies should still pay attention to national development patterns in order to realize sustainable development.

Article 140 of the Minerba Law actually weakens government supervision of the implementation of mining business activities (both carried out by IUP, IUPK, IPR, SIPB, Transportation and Sales Permit or IUJP holders) because it is fully delegated to the Minister. This results in the burden of supervising mining business activities being centralized on the central government, including supervising mining business permits that are not issued by the central government itself. People who will report mining damage in their area are made difficult by having to report to the central government which is too far away from the mining crisis area.

In addition, there is the elimination of criminal articles against state officials who issue problematic and corrupt permits, namely Article 165 of Law Number 4 of 2009: “Anyone who issues an IUP, IPR, or IUPK that is contrary to this Law and abuses his authority shall be subject to a maximum imprisonment of 2 (two) years and a maximum fine of Rp200,000,000.00 (two hundred million rupiah).

Human Rights Violations in the Process of Forming the Minerba Law

The revision of the Minerba Law opens up opportunities for criminalization of people who reject mining businesses and even mining rejectors can be subject to additional criminal sanctions, ranging from confiscation of goods to the obligation to pay compensation.

Article 162: “Anyone who obstructs or disrupts the Mining Business activities of IUP, IUPK, IPR, or SIPB holders who have met the requirements as referred to in Article 136 paragraph (2) shall be punished with imprisonment for a maximum of 1 (one) year or a maximum fine of Rp100,000,000.00 (one hundred million rupiah)”

Article 164: “……….the perpetrators of criminal acts may be subject to additional penalties in the form of: a. confiscation of goods used in committing the criminal act; b. confiscation of profits obtained from the criminal act; and/or c. obligation to pay costs arising from the criminal act”

Violation of the constitution, namely the goal of the Unitary State of the Republic of Indonesia in the fourth paragraph of the preamble to the 1945 Constitution of the Republic of Indonesia, Article 33 paragraph 3, and Articles regarding other Human Rights;

Violation of the right to information, namely the public has difficulty obtaining access to information and data related to mining;

Violation of the right to participate, there is no space for the public to reject or express objections to mining (right of veto) and there is not a single article that provides space for citizen participation, including articles regarding consultation with indigenous peoples;

Violation of the right to development, because it is determined systematically and planned by the central government as a whole;

Violation of the right to a clean and healthy environment results in weak environmental protection;

Violation of the right to water, because drinking water and water for daily needs becomes polluted or water sources dry up;

Violation of the right to work, people who work as farmers, fishermen, farm laborers, and pond farmers lose their livelihoods.

However, on the other hand, Law Number 3 of 2020 provides a new alternative for mining businesses because it is able to mediate between the Law Number 11 of 1967 which is too liberal and Law Number 4 of 2009 which is nationalistic or gives too much authority to the Government. Law Number 3 of 2020 emphasizes the certainty of mining businesses so that investors are convinced that Indonesia is a country that is friendly to mining investment. In addition to being made because of economic motives, Law Number 3 of 2020 can also be a government alternative in Indonesia's weak position amidst foreign investment pressure, namely by regulating the guarantee of extending Work Contracts and Coal Mining Exploitation Work Agreements in the IUPK for the continuation of Contract Operations.